From the day it was decided to establish the National Prosecuting Authority (NPA), protecting its independence and ensuring its accountability has been of ­paramount importance. Its independence is therefore protected by the Constitution.

Yet the independence of the institution has remained open to manipulation in spite of constitutional provisions that are supposed to protect it.

On Wednesday, the Institute for Security Studies released a paper authored by researcher and former prosecutor, Martin Schönteich, positing the possibility of establishing an independent body to oversee the NPA.

The paper looks at international models of holding prosecuting authorities accountable, and contains several suggestions that the institute hopes will be taken ­seriously by those in power.

The NPA is accountable to Parliament, the treasury, and the auditor general.

“However, unlike the police or prison services, the NPA’s policies and performance are not subject to review or scrutiny by any independent and dedicated entity,” Schönteich writes.
And members of Parliament who oversee the NPA often do not understand its inner workings, and are not legal experts in the field.

International precedentAspects of the judiciary and the appointment of judges are overseen by the Judicial Service Commission, while the Magistrate’s Commission is responsible for overseeing the lower courts.

The Independent Police Investigative Directorate investigates and reports on the actions of police, while the Judicial Inspectorate of Prisons monitors the conditions of prisons and the treatment of prisoners.

Schönteich writes that the lack of an independent oversight body for the NPA, given its “tremendous power”, is a “glaring gap in the country’s constitutional architecture”.

In England and Wales, the Crown Prosecuting Service is overseen by the Crown Prosecution Service Inspectorate (CPSI), led by a “chief inspector”. The CPSI’s staff comprise of legal and nonlegal inspectors, including members of the public.

Each year, the CPSI reviews a sample of case files, and reviews these according to various criteria, including case preparation, the quality of prosecutorial decisions as well as victims’ and witnesses’ experiences of the criminal justice system.

The Inspectorate of Prosecutions in Scotland is similar to that of the CPSI, inspecting the country’s prosecution service and making recommendations to improve it. It also reviews closed cases, the prosecution services relationship with the rest of the criminal justice system, and all its reports are made public.

Northern Ireland has an independent assessor, which handles complaints made against its prosecutorial service.

Crisis of legitimacyProsecutorial review commissions also exist in several countries, according to Schönteich. These commissions investigate decisions not to prosecute, typically after receiving a claim from the victim of the crime in question or their representative.

In some cases, these commissions have the powers to overturn prosecutors’ decisions if their investigation finds that the prosecutor erred in making their decision. But Schönteich says this option might not be desirable in South Africa, as this would probably infringe on the NPA’s independence.

But such a commission could, for example, compel the NPA to publicly provide reasons for its decision not to prosecute.

This is Schönteich’s second study on the NPA. He says his work has revealed that the organisation had an auspicious beginning, “but has entered a crisis of sustained legitimacy”.

No head of the NPA has served their full term: all have been removed controversially, and the NPA’s current head, advocate Mxolisi Nxasana, is facing an inquiry into his fitness to hold office.

Protecting the NPA’s independenceThere are also “systemic weaknesses” in the organisation that the current oversight mechanisms are not able to address, he said.

“While, for example, Parliament and the auditor general are often quick to criticise and find fault with the NPA’s performance, none of the NPA’s existing external accountability mechanisms is designed to provide constructive input and recommendations, based on sound research and an intimate understanding of the organisation,” Schönteich writes.

But if such a body were to be established, it would have to carefully strike a balance between holding the entity to account and ensuring its independence. The NPA is constitutionally protected from interference by any person or organ of state. Yet, over the years, critics have ­repeatedly warned that it is vulnerable to political manipulation and interference.

The body would therefore hypothetically have limited powers in terms of reviewing the NPA’s decisions, and this would also mitigate against the possibility of overlap with the judicial review mechanism, which also exists where decisions not to prosecute are challenged through the courts.

Likewise, with regards to the NPA’s appointment process, such a body would probably not be able to influence the appointments made. But it could make recommendations and help to identify weaknesses in how the NPA appoints its staff.

Achieving transparencyBut this leads to the question of whether such a body could ever have teeth without interfering with the independence of the NPA. And, could such a body operate independently and transparently in the current political environment? At least one example, where the NPA asked an independent agency to investigate alleged political interference, suggests not.

When former NPA head, Mokotedi Mpshe, announced his decision to drop the charges against President Jacob Zuma in 2009, he also announced that another investigation would take place.

The charges were dropped because of the allegation that the timing of Zuma’s charges was politically motivated, as evidenced by the so-called spy tapes, which ­supposedly show that the Scorpions and the NPA were concerned with the timing of the charges in the context of the ANC’s 2009 elective conference.

And so Mpshe tasked the inspector general of intelligence with investigating whether the spy tapes were recorded legally.